US Attorney bullying? This time charge is lobbed by budget motel owner who fought to keep property

Prosecutors

US Attorney bullying? This time charge is lobbed by budget motel owner who fought to keep property

By Debra Cassens Weiss

Jan 30, 2013, 12:00 pm CST

A U.S. Attorney under fire for her prosecution of an Internet activist is back in the news after a judge refused prosecutors’ bid to seize a family-owned budget motel.

On Jan. 17, U.S. Attorney Carmen Ortiz defended her office’s prosecution of 26-year-old “hactivist” Aaron Swartz, who committed suicide as he awaited a felony trial over accusations he downloaded scholarly papers to make them accessible for free. Critics accused Ortiz of prosecutorial overreach; Ortiz told of a six-month plea offer and said her office was enforcing the law responsibly.

A week later, U.S. Magistrate Judge Judith Dein of Massachusetts issued a “sometimes scathing ruling” rejecting the motel forfeiture request by Ortiz’s office, the Wall Street Journal (sub. req.) reports. According to the Christian Science Monitor, “The two cases are feeding a simmering groundswell among constitutional law professors and others about the inherent discretionary powers of federal prosecutors.”

The government had argued that the Motel Caswell in Tewksbury, Mass., was subject to forfeiture because of 15 drug-related incidents that took place there over a 14-year period. Russell Caswell, who ran and partly owned the $57-a-night motel, said he had no part in the drug crimes, and didn’t know of them until after they occurred, according to the Wall Street Journal, the Lowell Sun and the Boston Herald.

In the ruling (PDF), Dein said it was “rather remarkable” for the government to contend that owner Russell Caswell should lose his property “for failure to undertake some undefined steps in an effort to prevent crime.” Dein said Caswell “was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family” and he took reasonable steps to prevent crime.

After the ruling, Caswell criticized the U.S. Attorney’s office for bringing the case. “It’s bullying by the government,” he told the Boston Herald.

The Institute for Justice helped represent Caswell. The ruling is “a major triumph for property rights,” according to a press release.